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Successful Durham appeal unlikely, outside lawyers say

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The co-owners of Fair Finance Co. who were sentenced Friday on federal fraud charges plan to appeal their convictions, lawyers for the two men say.

But a couple of veteran criminal defense attorneys who tracked the trial of Tim Durham and James Cochran, along with company chief financial officer Rick Snow, say a successful appeal is an extreme long shot.

“If I was involved in that appeal, the last thing that I would do is overstate any hope to the family,” Indianapolis lawyer Robert Hammerle said.
 
Durham received a 50-year sentence and Cochran a 25-year sentence from Judge Jane Magnus-Stinson for defrauding Ohio investors of $250 million. Snow was sentenced to 10 years. Snow’s lawyer, Jeffrey Baldwin, couldn't be reached Monday morning to see if he plans an appeal.

A federal jury in June found Durham guilty on all 12 felony fraud charges stemming from the collapse of Akron, Ohio-based Fair. Durham co-owned the firm with Cochran, who was convicted of eight of 12 felony charges. Snow was convicted on five of 12 counts.

The lengths of their sentences are much shorter than what the government had recommended — 225 years for Durham, 145 years for Cochran and 85 years for Snow.

Following Durham’s sentencing Friday, his lawyer, John Tompkins, said he planned to appeal the conviction to the 7th Circuit U.S. Court of Appeals in Chicago. A notice of appeal must be filed within 14 days of sentencing.

Tompkins didn’t return a phone call Monday morning seeking further comment on what legal argument he might use to get Durham’s conviction reversed.

But Friday, he said, “anything that is likely to result in dying in prison can’t be described as a good result.”

Reached by phone Monday morning, Cochran’s lawyer, Joseph Cleary, said he, too, planned to appeal his client’s conviction, though he declined to specify on what grounds.

Cleary did not represent Cochran during his conviction and was appointed as a public defender in late September.

“What the issues in the appeal will be, at this point, I can’t tell you,” Cleary said.

Marty Solomon, a veteran criminal defense lawyer in Indianapolis who has argued several cases in front of 7th Circuit judges, said lawyers mostly cite lack of evidence or judicial error when appealing.

But in the case of Durham and Cochran, the chances of success are slim, said Solomon, who described the evidence as “powerful” and “overwhelming.”

“I would say that Durham and his co-defendants probably have a better chance of hitting a $500 million lottery than succeeding on appeal,” he said.   

Barring successful appeals, Durham, 50, likely will spend the rest of his life in prison and Cochran, 57, most of his remaining years.

Unlike state prisoners, federal inmates must serve 85 percent of their sentences. Durham would need to live to 93 to survive his sentence, and Cochran, to 78. Snow is 49 years old and could be out in 8-1/2 years.

Solomon said Magnus-Stinson likely gave Durham 50 years — basically a life sentence — instead of the recommended 225 years to avoid an appeal on the sentence. Most all federal appeals argue the conviction and not the sentence, he said.

“I never thought of her as a lenient judge,” said Solomon, who appeared before her during her time as a criminal court judge in Marion Superior Court. “So I knew right away that she would be strict with Durham.”

Federal prosecutors sought the stiffer sentences, taking into account 5,122 victims and a loss of $250 million, to punish Durham and Cochran for operating Fair as a Ponzi scheme.

Before his sentencing, Durham said he read many of the letters from victims and regretted that the company failed. He also defended Cochran and Snow but failed to offer an apology.

Cochran, though, sobbed while telling investors how remorseful he was over their losses.

“One thing I know for sure is that I regret what happened to all the investors,” he said. “I’m heartbroken. I never intended for this to happen.”

U.S. Attorney Joseph Hogsett called Durham’s 50-year sentence “a significant price that he deserves.”

The victims "lost their peace of mind, their trust in others, and their faith in goodness and mercy," Hogsett said in a prepared statement. "These are things they will never get back. What Tim Durham and his associates destroyed through self-indulgence was irreplaceable, and those people may never be made whole."

All of IBJ's coverage of Tim Durham and Fair Finance can be found here. The IBJ is a sister publication of Indiana Lawyer.
 

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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